DMCA § 1201 makes reverse engineering modern consoles illegal.
Any modern game console has some form of decryption, which can be argued to prevent access.
This is when we run into the chicken/egg problem because you can't write emulation without violating 1201. It is also in part the argumentation Nintendo used in the yuzu case.
One argument that I’d like to see made is that DMCA takedown requests, which are intended to enforce copyright is the wrong enforcement mechanism because the 9th Circuit, in SONY v. CONNECTIX said that the functional aspects of emulation can only be protected under patent law.
Ok, what if the emulator that is distributed is not functional, but to make it into a functional emulator, you have to (1) compile it, OR (2) make small modifications to it (that are distributed through a different channel), or both.
The difference is those security chips were used to prevent unlicensed games, not to prevent the games from being played on unlicensed consoles (emulators).
You get a few exemptions for research for security reasons, but it does require it to be on "a lawfully acquired device or machine on which the computer program operates solely". So an emulator doesn't fit the bill at all.
Video games are mentioned: you're allowed to circumvent DRM for games that no longer have their online servers running.
That is interesting. I wonder if there are any Switch games which have had their servers turned of and if an emulator can be argued to be made for the purpose of supporting that game only (that it then happens to play other games...)
In the US. The DMCA is only relevant because GitHub is operated by a US company. Nintendo would have to try to make the same arguments for EU law, e.g., if the software in question would be hosted in the EU. That might be more complicated.
EU resident here. Reverse engineering in general is allowed, but decompiling software adds a good number of restrictions[1].
Disclaimer: I have talked to lawyers. Our company makes industrial IoT loggers and during my career I have only been given appropriate documentation twice by manufacturers. Most of the systems have been reverse engineered through packet capture.
Even with documentation you still get garbadge. I've had to decompile a HSM firmware to figure out what the actual input of functions was since the manufacturer kept claiming the documentation was correct. It wasn't even close. Only after I provided the solution to my own support ticket they changed the documentation (why bother paying for full support...).
I've gotten a bit of empathy for the poor front support guy since he'd have to keep complaining to the developers which kept saying "no it's fine as documented".
Brazil also allows non-clean room reverse engineering (I still don't understand why we're not a rev-eng tech hub, come to Brazil my Ghidra/IDA users) and have much saner laws regarding piracy (like it being legal for 24h for testing), I've only ever seen big pirates (those who have piracy streaming websites) getting busted, I don't ever use a VPN and had no issues whatsoever with my piracy (have been a pirate for almost 20yrs now).
No person shall circumvent a technological measure that effectively controls access to a work protected under this title.
https://www.law.cornell.edu/uscode/text/17/1201
Can the emulators remove the circumvention code to avoid the DMCA takedown?